Corbally v. The Medical Council – One year on

This is the third in a series of articles which examine the process by which the PSI supervises pharmacists and pharmacies and their compliance with the Pharmacy Act 2007 (the "2007 Act"). The Supreme Court decision in Corbally v. The Medical Council, Ireland and the Attorney General [2015] IESC 9, which was decided just over a year ago, was viewed as a decision likely to cause professional regulators such as the PSI to tread more carefully in fitness to practise proceedings against professionals. One year on from this landmark judgment we examine if and how the judgment has impacted on the pharmacy sector.

Key Points

• Far from certain what the law is after Corbally 
• Difficult to determine whether the Corbally decision is being applied
• Akpepke decision may bring some clarity
• Government has a duty to act as there is limited scope for regulators to do so.

Background

By way of brief reminder, Professor Martin Corbally was a consultant paediatric surgeon at Our Lady's Hospital for Sick Children, Crumlin. In a handwritten note he incorrectly described the procedure to be carried out as an excision of "upper lingual frenulum". However this note did not have any causative effect in relation to the unfortunate incident which followed.

Unfortunately, the IT system in use in Crumlin Hospital at the time had only one code for all three types of frenula dissection and this is what was recorded on the system and in turn what led to the incorrect procedure being carried out on the child (not by Professor Corbally). Ultimately, a corrective procedure was carried out the same day and the child made a full recovery.

Despite the fact that his initial error was not causative of the incorrect procedure, Professor Corbally was found guilty of 'poor professional performance' by the Medical Council and received an 'admonishment'. Professor Corbally instituted judicial review proceedings before the High Court seeking to quash the determination of the Medical Council. The High Court quashed both the decision of the Medical Council imposing the admonishment and the underlying finding of its Fitness to Practise Committee of poor professional performance. The Medical Council appealed the High Court decision to the Supreme Court however the High Court decision was upheld, and if anything reinforced, by the Supreme Court. 

Academic Discussion 

There has been much academic discussion regarding the implications of the Supreme Court decision. The Supreme Court handed down three judgments that, in places, appear contradictory and that present an obstacle to properly defining poor professional performance (and as a consequence professional misconduct). It is fair to say that aspects of the law concerning poor professional performance in particular are in a state of flux.

The three judgements are consistent on certain issues and as a consequence a number of things can be said with a degree of certainty:

1. Poor professional performance is not a lesser category of shortcoming than professional misconduct, but rather it is a different category. Most professional regulators, including the PSI had treated poor professional performance as being a category of shortcoming falling below professional misconduct. In Corbally, the Supreme Court observed that the sanctions available for both poor professional performance and professional misconduct are identical and so one cannot be said to be less serious than the other. Whether poor professional performance should be a less serious charge than professional misconduct is another day's work entirely. The difficulty for the PSI and other regulators is that they are constrained by the legislation under which they operate and rightly or wrongly the legislation enacted by the Oireachtas does not provide that poor professional performance is less serious than professional misconduct. 
2. An allegation of poor professional performance arising from a single incident, is only ever capable of constituting poor professional performance if it is quite serious.
3. Failings or incidents, even if not individually serious, which are part of a pattern of behaviour or conduct, can be regarded as cumulatively of sufficient seriousness to ground a finding of poor professional performance.
4. It does not appear to be the case that, as would seem to be the situation in the United Kingdom, a "fair sample" of a pharmacist's work must be assessed before a finding of poor professional performance can be reached.
5. In determining whether a failing or series of failings is serious, a factor for consideration will be whether there was any “adverse consequence or causative event”.

Even though the Supreme Court was primarily concerned with poor professional performance, the corollary of the decision is that points 2-5 above apply as equally to professional misconduct as they do to poor professional performance. If nothing that is not serious can be poor professional performance, then it necessarily follows (whatever the distinction between poor professional performance and professional misconduct) that nothing that is not serious can be professional misconduct.

Under the 2007 Act, professional misconduct is defined as including any breach of the PSI's Code of Conduct. It would be very troubling indeed if even a minor or inconsequential breach of the Code of Conduct could constitute professional misconduct.

How have Regulators addressed Corbally?

At the time of the Supreme  Court decision, the PSI, like many other regulators, indicated that it had been applying High Court judgement in Corbally since it was handed down and would consider any further implications arising from the Supreme Court decision.

The rather basic reasoning and detail in published decisions of committees of inquiry  makes it difficult to determine whether the Corbally decision is being applied (as indeed does the disagreement regarding what exactly Corbally decided).

Our impression from our experience in practice has been that committees of inquiry have taken on board the Corbally decision, but in circumstances where we don’t know what principles the PSI says it is applying from Corbally, it means it is not possible to tell whether the PSI is applying those principles. 

It is fair to say however that to date there has been no indication that fitness to practice regulators such as the PSI have been more inclined to seek to impose sanctions which required the approval of the High Court (i.e. all sanctions apart from admonishment or censure), thereby providing them with the safety net of having the High Court making the final decision.

The Corbally decision also raised questions as regards the advice a fitness to practice committee such as the Professional Conduct Committee of the PSI may be given by its legal assessor. In Professor Corbally's case, the advice of the legal assessor to the Fitness to Practice Committee was ignored by the committee. Accordingly, Professor Corbally's legal team never had an opportunity during the hearing before the committee to comment on the basis on which the committee were actually going to approach the question of whether poor professional performance had been made out. It appeared to the Supreme Court that this alone might be sufficient to quash the decision.

In our experience, committees of inquiry can still refuse to follow the advice of their legal assessor, but pharmacists are offered an opportunity to comment on the fact a committee does not propose to follow its legal advice.

Has the Government Acted?

There are certain issues which the PSI and the other regulators simply cannot address. For example, under the 2007 Act a pharmacist has no right of appeal against a sanction of admonishment or censure, despite such sanctions being potentially very serious indeed when it comes to the reputation of the pharmacist. The PSI does not have the power to remedy this.

The Fine Gael / Labour Government's Autumn 2015 legislative programme had indicated that a Health (Miscellaneous Provisions) Bill would be published during the Autumn / Spring session of the Dáil which would propose to amend the Medical Practitioners Act 2007, the Dental Act 1985, the Health and Social Care Professionals Act 2005, the 2007 Act and the Nurses and Midwives Act 2011 to provide for an appeal against minor sanctions. No such Bill was published.

The last indication from Minister Varadkar prior to the election was that the Department was still working on the Bill. It remains to be seen how high on the list of priorities such a Bill would be for a new Government.

Conclusion

The right of appeal against admonishment is also a factor in the case of Akpepke v. The Medical Council, a case which is currently under appeal to the Supreme Court. Importantly, because the challenge by Professor Corbally to the constitutionality of the Medical Practitioners Act 2007 and its compatibility with the European Convention on Human Rights was not determined pending the judicial review of the Medical Council's decision, the lack of appeal issue remains open.

If there is to be legislation amending the 2007 Act to provide for a right of appeal against minor sanctions, the opportunity should be taken to address some of the other shortcomings of the fitness to practise processes in the 2007 Act, including the following:

1. The definition of 'poor professional performance' must be amended to include a threshold of seriousness and clarification that a single failure does not constitute poor professional performance unless it is serious. 
2. The definition of 'professional misconduct' must be amended to refer to a serious breach of the code of conduct.
3. The Preliminary Proceedings Committee must be required to consider whether the complaint, if proven, would meet the threshold of seriousness for poor professional performance and/or would constitute professional misconduct.
4. There should be more informal methods of resolving complaints. For example, the Registrar or another person or committee designated by the Council of the PSI may, following agreement with the pharmacist, recommend that the Council confirm that the pharmacist is guilty of professional misconduct or poor professional performance and that a particular sanction be imposed.
5. It must be enshrined in the 2007 Act that, in accordance with professionals' constitutional right to earn a livelihood, the standard of proof of which the Professional Conduct Committee, Health Committee or Council must be satisfied as regards an allegation of professional misconduct or poor professional performance is 'beyond a reasonable doubt'.

While the Corbally decision has been a landmark judgment, many of the matters addressed by it remain somewhat uncertain in their application to fitness to practise proceedings. It is difficult to discern the extent to which the PSI is applying the Corbally decision and in any event there is limited scope for the PSI to address some of the issues which arose in Corbally.

It is hoped that a new Government will recognise the shortcomings of current fitness to practise processes and make changes above and beyond the minimum of change required to ensure the 2007 Act is consistent with Corbally.

Gary Rice, Aidan Healy and Niall Sexton of DAC Beachcroft Solicitors (01 231 9600) are specialists in the commercial and regulatory issues which arise for pharmacies and pharmacists. DAC Beachcroft, a global law firm, is a recognised market leader in healthcare law. This article is for general information purposes only and does not comprise legal advice on any particular matter. You should not rely on any of the material in this article without seeking appropriate legal advice.